(z) Above, pp. 45, n. (f) . 915.

19(2)

Resale to enforce the vendor's lien.

If, on a sale of land, the purchaser have notice that the vendor has entered into a prior contract for sale thereof, which has not been carried out, and the vendor claim to have lawfully rescinded that contract for the default of the other party thereto, the purchaser must, of course, require very clear evidence that the prior purchaser has committed such a breach of the contract as justified the vendor in rescinding it (l). If the fact be at all doubtful he should refuse to accept the title, for, having notice of the prior contract, he will be bound thereby, in case it be still subsisting and enforceable (m). And unless the vendor can prove the fact to be reasonably certain, he cannot oblige the purchaser to accept the title, even at law; still less can he enforce the second contract specifically (n). The same principles apply where the vendor claims that the prior contract was lawfully rescinded by him under an express power of rescission, or was otherwise discharged (o); in each case strict proof must be required of the facts alleged to have extinguished the obligation of the prior contract. If the vendor claim to be reselling under a power of resale expressly reserved to him by the prior contract (p), the purchaser must require equally clear evidence that the event has occurred in which the power of resale was to become exercisable (q), and should observe equal caution in accepting the title. The case is similar to that of a mortgagee selling under his power of sale, but there are not usually any special stipulations to protect the purchaser in the event of an improper exercise of the power (r). If the vendor claim to be reselling under a power of resale alleged to be impliedly reserved to him by the prior contract, and that contract contain no special stipulations from which such a power might reasonably be implied, the purchaser is advised not to accept the title (s).

Title under a sale by a vendor reselling.

(a) Above, p. 955, n. (x) .

(b) Above, pp. 58, 62.

(e) Lamond v. Davall, 9 Q. B. 1030, 1032; Benjamin on Sale, 648, 2nd ed.

(d) Ockenden v. Henly, E. B. & E. 485.

(e) See above, pp. 42 - 45, 955, and n. (u).

(f) Above, pp. 44, 931.

(g) Above, p. 44.

(h) Harding v. Harding, 4 My. & Cr. 514; above, p. 45.

(i) Above, p. 45.

(k) See above, p. 45, n. (d); below, p. 959.

{l) Above, pp. 936 - 938, 947, 948.